Suspension and the Extrajudicial Constitution

What happens when Congress suspends the writ of habeas corpus? Everyone agrees that suspending habeas makes that particular—and particularly important—judicial remedy unavailable to those the government detains. But does suspension also affect the underlying legality of the detention? That is, in addition to making the habeas remedy unavailable, does suspension convert an otherwise unlawful detention into a lawful one? Some, including Justice Scalia in the 2004 case Hamdi v. Rumsfeld and Professor David Shapiro in an important recent article, answer yes. This Article answers no. I previously offered that same answer in a symposium essay; this Article develops the position more fully. Drawing on previously unexamined historical evidence, the first half of the Article shows that treating suspension of the writ as legalizing detention is at odds with the dominant historical understanding in both England and the United States. According to that understanding, suspension affects neither the legality of detention nor the availability of post-detention remedies (like money damages) for unlawful detention. Suspension of the writ, post-detention liability, and legality are distinct questions. My aims go beyond providing a positive account of suspension, however. In the second half of the Article, I examine a set of broader issues that my account of suspension raises but that the current literature almost entirely overlooks. The core question here is this: If suspension does not equal legalization, what are the roles and obligations of the legislative and executive branches when the writ is validly suspended? I suggest ways to think about those branches’ independent obligation to uphold and enforce the Constitution during periods of suspension, especially with regard to constitutional norms that might seem to be associated exclusively with the courts. In that respect, the Article uses suspension as a window into larger issues regarding the theory and mechanics of constitutional interpretation and implementation outside the courts.